Appeals court hears permit case

March 12, 2013

LANSING - The Michigan Court of Appeals heard arguments Tuesday for and against overturning a permit to build a coal-fired power plant in Rogers City.

The Sierra Club and the Natural Resources Defense Council are appealing a decision upholding the Michigan Department of Environmental Quality's issuance of a permit to install to Wolverine Power Cooperative. That decision came in 2012 when an Ingham County Circuit Court judge affirmed the DEQ's actions. Nick Schroeck, an attorney with the Great Lakes Environmental Law Center who is representing both organizations, said the permit has technical issues with the levels of air toxins it would allow the proposed plant to release.

"In essence, we believe that the DEQ failed to include some essential emissions limits from the permit, mainly dealing with mercury and other air toxics," he said. "Our argument is those limits should have been included in the permit, and we've asked the court to remand or send the permit back to the DEQ to include the emissions limits.

While the litigation focuses on these particular issues, both the NRDC and the Sierra Club are on record opposing the plant, Schroeck said.

However, a brief filed by the Michigan Attorney General's office and the DEQ states the case is "moot" because the appeals court can't possibly "grant any effective relief" to the Sierra Club. This is because the DEQ no longer has the authority to set limits for mercury and other pollutants for coal-fired power plants.

When the DEQ issued the permit to Wolverine in 2011, the Environmental Protection Agency had no rules in place for hazardous air pollutants, according to the brief. Instead, the DEQ developed limits on a case-by-case basis based on "maximum achievable control technology." About six months after the permit was issued, the EPA adopted the Mercury and Air Toxics Standards, which supersede state limits on these pollutants.

"If this Court were to remand the case to MDEQ, Wolverine would instead be required to meet the emission limits in the MATS rule, a result that is no different than Wolverine's current obligations," the brief states.

The EPA had proposed its MATS a month before the DEQ issued Wolverine its permit, and federal law requires state agencies to consider proposed rules when developing case-by-case limits, the brief states. The DEQ did this, and determined to keep its own determination because the proposed rules may change before the EPA finalized them.

A decision by the United States Court of Appeals concerning a lawsuit challenging the MATS rule ultimately will have no effect on the case, the brief states. No matter how the court decides, the DEQ still will lack the authority to determine case-by-case emissions limits.

This appeal is the latest chapter in a lengthy saga surrounding Wolverine's permit dating back to 2007, when the power cooperative applied for it, according to the brief. The DEQ denied the permit based on a lack of need in 2010, a decision Wolverine appealed. They were successful, and the permit was finally issued in 2011. The Sierra Club and NRDC filed suit in September of the same year with the Ingham County Circuit Court, which upheld the DEQ's decision in March of 2012.

Ken Bradstreet, community and government affairs director for Wolverine, said the cooperative isn't directly involved with the lawsuit but supports the DEQ's decision.

"We support the fact that the state granted a permit, and believe that permit was lawfully granted," he said.